The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For many contemporary criminal law theorists, statutory law is supposedly the gold standard. Many believe that statutory legislation is more democratic than having common law crimes. Some maintain that statutory law is a necessary element of the principle of legality or required by political theories of punishment. And compared with common law crimes, many believe that statutory law is superior because it provides ex ante notice of prohibited conduct, whereas the scope of common law crimes is only clarified through ex post decisions.
But our current preference for statutory crimes is a mistake. Statutory crimes are neither inherently more legitimate nor do they necessarily provide better notice. The current view relies on idealized notions of democratic lawmaking.
Start with legitimacy. Majoritarian approval is not necessary to make statutory law in our system. Legislators do not act as perfect agents of their constituents' views. They may get captured by special interests. Or they may decide that it is in their electoral interests to vote with an impassioned minority over a more apathetic majority. Regardless, legislative approval does not inherently imply democratic legitimacy.
Nor is majoritarian support sufficient to make statutory law. Within legislatures, proposed bills face many nonmajoritarian vetogates. Executives can veto bills that enjoy majority support. The federal Senate is malapportioned, and the rules permit the minority to filibuster. Leadership and heads of committees can kill bills that would otherwise pass the legislature. Legislatures have limited legislative time and often full calendars. In many states, the legislatures are part-time, leading to heavily compressed schedules. The result is that many laws with majoritarian support do not get passed, and existing statutes lacking such support do not get amended or repealed.
Because statutory criminal law is difficult to repeal or amend, even with majoritarian support, it faces an analogous objection to the dead-hand objection in constitutional law: from a democratic perspective, why do we care if a legislature passed a crime, particularly if the legislature approved the law at some time in the distant past? Many old laws remain on the books, and some are desuetudinal. But many are actively enforced. The Controlled Substances Act is 40 years old, as is the Gun Control Act. Prosecutions under these laws compose a large fraction of all federal criminal prosecutions. If both laws came up to a vote today, neither law would likely pass in its current form. Why does legislative approval decades ago confer legitimacy today?
Legal conventions serve many functions. One principal function is to correct for defects in the formal legal system, including those related to legitimacy. In the British system, one might ask what gives a (hereditary) monarch the right to wield executive power? (The famous Monty Python skit asking this question is here.) The answer is that, in modern Britain, the monarch does not actually exercise such power. The British constitution vests de facto executive power in a government accountable to the voters.
Conventional criminal law similarly corrects defects with statutory criminal law. My article does not offer a full theory of criminal law, but I assume that, at least in part, what makes an act properly punishable is that the action breaches societal norms. (This is obviously an oversimplification. I do not contend that any conduct that breaches societal norms is inherently criminal conduct. In the article, I qualify this claim substantially.) But societal norms change, and they change faster than legislatures can respond given all their constraints.
Criminal law conventions provide an answer to the problem of criminal law's legitimacy in the face of changing norms. We recognize many old criminal statutes as legitimate criminal law because the community presently recognizes as wrongful the conduct that these statutes prohibit. When societal values evolve, various political and legal checks (which I will detail more in tomorrow's post) constrain prosecutorial discretion around contemporary community norms. These checks effectively result in an unwritten common law that supplements the statutory law and corrects its defects.
This answer is superior to relying on legislative inaction. Some might contend that Congress's decision not to amend or repeal a law implicitly reflects Congress's acknowledgement that the law is legitimate in its current state. But this ignores how difficult legislating in our system is. Inaction does not connote continued approval.
Another objection to unwritten criminal law is that it leaves individuals without notice about what the law is. Statutes, they contend, provide better notice to the community about what conduct is allowed and what is prohibited compared with unwritten law.
I think this objection is mistaken. People learn de facto unwritten criminal law through observation and partaking in shared culture. We know that adultery is not a real crime because no one has ever heard of anyone being arrested for it, despite the fact that infidelity is not uncommon. Drivers learn the real speed limits by observing how family and friends actually drive. The value of written law in providing notice is overstated. Few people read statute books to learn what is lawful (and most who do are probably interested in specific regulatory offenses). Moreover, many statutes are broad, vague, or implicitly rely on unwritten common law concepts (e.g., "malice aforethought," "fraud," or an "attempt").
As I close, let me provide one major qualification to my argument. I do not claim that the existence of criminal law conventions solves all of criminal law's legitimacy problems. As Adrian Vermeule notes, "[c]onventions are equilibria," and sometimes society settles on equilibria that are "normatively abhorrent." Some paradigmatic historical examples are customs of not prosecuting whites who killed African Americans in the South and the underenforcement of domestic violence crimes. Criminal law conventions do not insulate criminal law from societal defects. To the contrary, criminal law conventions rely on indirect means of enforcement (e.g., political pressure), and societal defects may hamper those enforcement mechanisms. A disenfranchised population cannot elect new prosecutors, pressure city councils to curb police abuse, or demand that legislatures rewrite the law.
But while conventional criminal law may not be perfect, it is better and more legitimate than a purely statutory system. The criminal codification project promises more than it can deliver: clear laws prohibiting specific conduct drafted ex ante by democratically-accountable and responsive legislatures. That is not the real world.
Statutory laws are never perfectly drafted. Small errors or changing times can create large overcriminalization problems. Legislatures often lack the time to maintain their criminal codes, and many legislators are incentivized to placate special interests when drafting laws. Modern statutory systems exist in nonideal conditions. These legislative defects are not readily fixable. Rather than wish them away, we would be better advised to continue developing our unwritten customs and traditions to correct the defects in our written law.